Thursday, March 30, 2017

OFF THE WIRE
Police are “not supposed to rely on CalGang as evidence of gang
membership. … In practice, they use it to check if an individual is
listed as a gang member.”
Peter Bibring
senior staff attorney, ACLU of Southern California

One mild fall evening, two deputies with the Los Angeles County Sheriff’s Department’s gang unit headed into the streets of Carson, California, where palm trees are tagged with gang graffiti and street signs in some neighborhoods are turned around or removed to confuse outsiders.

The deputies, Jon Boden and Alfredo Garcia, had a big job to do. As part of the Operation Safe Streets Bureau, they were expected to get a handle on gang violence in the cities of Carson and Compton.

The intent of that evening’s patrol was to prevent shootings – but the deputies also were on the hunt for intelligence about gang feuds and activity. Several times during the 2014 patrol – with a Reveal reporter riding along – they stopped, searched and questioned young blacks and Latinos about drugs, gangs and what they were doing in a particular neighborhood.

About 10 minutes into their shift, the deputies spotted a young couple in a silver Chevrolet parked under a tree in a J.C. Penney store’s backlot. Boden saw the man rolling a blunt of what he thought looked like crushed marijuana. Both deputies sprang out of the squad car and asked the man and his companion, a woman, to step out of the vehicle.

As Boden held the man’s hands behind his head and searched his pockets, the man started to struggle. The deputy forced him onto the hood of the squad car and handcuffed him. Boden pulled two bullets out of the man’s pants pocket; a search of the car yielded a gun safe with a .22-caliber pistol, several grams of marijuana, prescription drugs, a digital scale and two driver’s licenses that the deputies discovered had been reported stolen.
During a fall 2014 stop in Carson, Calif., deputies from the Los Angeles County Sheriff’s Department’s gang unit searched a car, finding a gun safe with a .22-caliber pistol, several grams of marijuana, prescription drugs, a digital scale and two driver’s licenses that had been reported stolen.

During a fall 2014 stop in Carson, Calif., deputies from the Los Angeles County Sheriff’s Department’s gang unit searched a car, finding a gun safe with a .22-caliber pistol, several grams of marijuana, prescription drugs, a digital scale and two driver’s licenses that had been reported stolen. Credit: Ali Winston/Reveal

The young man also had an unlocked cellphone on him. Thumbing through the device, Garcia found photographs of him posing with shotguns and pistols, a blue bandanna wrapped around his face. The man quickly admitted that the gun and drugs in the safe were his and that he was a member of the Park Village Compton Crips.

After Boden and Garcia had handcuffed the pair and were searching their car, Sgt. Gerardo Lucio, their supervising officer, pulled up. As the deputies conducted their search, Lucio explained the significance of the stop. It inevitably would produce a field information card identifying the man as a gang member, he said, “because he self-admitted and we found those photographs.” The woman also would get a card referring to her “as an associate” of a gang member.

If the officers hadn’t pulled over the duo that day, Lucio added, they would have “miss(ed) out on that information about his membership. … Field interview cards and field interviews help us figure out who’s hanging with who, when. A lot of the time, my guys get new members we haven’t come into contact with.”

Police are “not supposed to rely on CalGang as evidence of gang membership. … In practice, they use it to check if an individual is listed as a gang member.”Peter Bibring
senior staff attorney, ACLU of Southern California

The field card information would then be loaded into CalGang, a statewide database that over the years has grown to include more than 150,000 people. Law enforcement officials maintain that the tool is critical in the ongoing battle against gangs, but it has come under fire from civil libertarians and criminal justice reformers for its secrecy, which can ensnare innocent people without their knowledge.

Lucio said his deputies typically add people to CalGang based on tattoos, gang-related clothing or self-admission, criteria laid out in the 1988 STEP Act – California’s Street Terrorism Enforcement and Prevention Act – which allows judges to mete out harsher punishment for gang members.

Self-admission is unique. Whether it’s obtained in a field interview or at jail intake, it is the only criteria the STEP Act allows to stand on its own as proof of gang membership. There’s no room for gray areas: If someone claims a gang membership during a jail interview to avoid being housed with people from a hostile neighborhood or because he or she thinks it will garner respect and status, that automatically marks the person as a gangster in the eyes of California law enforcement.

Aside from a 2013 law that established a way for parents and juveniles to challenge a child’s inclusion in the database, most people can’t find out whether they are in CalGang. An effort to create a similar process for adults failed last year amid heavy lobbying by law enforcement agencies, which use the data to build files and bring charges against people based on their alleged gang ties.

“They’re not supposed to rely on CalGang as evidence of gang membership. They’re supposed to contact the person who entered that information into the system,” said Peter Bibring, a senior staff attorney for the American Civil Liberties Union of Southern California, speaking of both district attorneys and police. But, he said, “in practice, they use it to check if an individual is listed as a gang member.”

Those concerns, coupled with criticism that the criteria for adding someone to the database are too vague and people of color are disproportionately included, prompted the state to launch an audit of the system last summer. That report is due in August. In February, Assemblywoman Shirley Weber, D-San Diego, introduced AB 2298, the latest attempt to require that adults be notified if they are included in CalGang.
Consequences of gang classification

Aaron Harvey learned the hard way what it can mean to be documented as a gang member. He was a 26-year-old seeking his fortune in the Las Vegas real estate industry when he stepped out of his apartment to get some lunch on July 18, 2014. The San Diego native had moved there a year earlier to get away from the tumult of the hardscrabble Lincoln Park neighborhood where he grew up and where his family has lived for decades.
Aaron Harvey, a former documented gang member on Tuesday, March 1, 2016 in San Diego, CA.(Photo by Sandy Huffaker for CIRonline)

Aaron Harvey was held without bail for eight months on criminal street gang conspiracy charges. Last March, a judge threw out the case against Harvey and several others, finding insufficient evidence to charge them. Credit: Sandy Huffaker for Reveal

Suddenly, nearly a dozen plainclothes U.S. marshals swarmed around Harvey with their guns drawn. He was arrested, booked at the Clark County jail and flown back to San Diego on a warrant in connection with nine shootings back home – shootings that had taken place after Harvey left for Nevada.

The shooters in these incidents never were identified. Instead, several men recorded on a wiretap discussing how to obtain a gun were charged with offenses ranging from attempted murder to assault. Harvey was not among them.

Even after the San Diego County district attorney’s office acknowledged that Harvey was not present for the shootings, he was charged with nine counts of criminal street gang conspiracy to commit a felony – one for each shooting. Prosecutors claimed that Harvey was a participant in the conspiracy because he was, they alleged, a member of the Lincoln Park Bloods and stood to benefit because the shootings would increase his notoriety. The gang conspiracy charge is relatively new, created in 2000 when California’s Proposition 21 increased penalties for gang offenses.

“I tell people that it might be a black and brown issue now, but it is going to be yours later.”Aaron Harvey
who was charged with criminal street gang conspiracy

To establish Harvey’s gang ties, prosecutors introduced photos from his Facebook account that showed him with other men from his neighborhood, wearing green clothing and making hand signs that prosecutors said were gang related.

They also cited evidence gathered from more than a dozen contacts Harvey had with San Diego gang police over the years – evidence that prosecutors suggested established his involvement with the Lincoln Park Bloods. Many of the contacts dated back to his teenage years, and none had resulted in a criminal charge.

Harvey ended up being held without bail for eight months. Last March, San Diego County Superior Court Judge Louis Hanoian threw out the case against Harvey and several of the other men, finding insufficient evidence to charge them.

“How can you attach a conspiracy,” the judge asked, “to a crime that doesn’t have a defendant?”

But release offered little relief. While he was in jail, Harvey lost his apartment and job as a club promoter. He moved back in with his parents in Lincoln Park. Motivated by what he sees as his own unfair targeting by law enforcement, he is now taking prelaw classes and organizing for criminal justice reform.

“I tell people that it might be a black and brown issue now, but it is going to be yours later,” Harvey said.

The case was a dark revelation for him. During an interview last spring at his parents’ home, Harvey vividly recalled those police stops, but it was only after prosecutors filed documents that he realized that police had documented each stop and taken detailed notes – about his tattoos, the colors he was wearing, where he was and the people he was with.

Each time, Harvey insisted that he was not affiliated with a gang. Still, he said, “you knew what the police considered you.”

Harvey now knows that information like that gathered about him routinely is fed into CalGang. That data – according to documents and interviews with law enforcement officials, attorneys and academics – frequently plays a role in arrests, inclusion in civil gang injunctions, deportations and criminal investigations.

The secrecy around CalGang and the loose criteria for inclusion in the database terrifies Harvey.

“It’s like a virus that you have, that you don’t know you have, and you’re spreading it to other people,” he said of gang classification. “(Someone) infected me with this disease; now I have it, and there’s no telling how many other people I have infected.”

But prosecutors believe Harvey has something to hide.

“Harvey knows more than he is willing to admit,” said Frank Jackson, San Diego County’s assistant district attorney in charge of gang prosecutions.
A history of California gangs

California long has been synonymous with street gangs and violence in popular culture, from “Boyz n the Hood” to “End of Watch.” Many of the state’s most infamous gangs – the Crips, the Bloods, the Norteños – coalesced in poor neighborhoods and barrios, particularly in the urban centers of the San Francisco Bay Area, Los Angeles and San Diego, in the middle of the 20th century. Others – Nuestra Familia, the Mexican Mafia, the Aryan Brotherhood – are offshoots of racial gangs formed in the state’s massive prison system.

As deindustrialization, white flight and urban decay hollowed out Los Angeles and other cities in the 1980s and the drug economy boomed, street gangs that previously engaged mostly in petty crime turned to more lucrative narcotics trafficking and grew as criminal organizations.

Almost as far back as there have been gangs, California law enforcement agencies have attempted to track their members. By the 1970s, this process had become routine. During stops of vehicles or pedestrians, police officers who suspected a person had a gang affiliation filled out a 5-by-7-inch index card, known as a field identification card. It included spaces for the person’s name, nickname, gang affiliation and physical description – including any identifying scars, birthmarks or tattoos – and room to attach a photograph. In the pre-digital days, these cards were filed alphabetically in cabinets, like library index cards.

But an upsurge of violence in the 1980s, largely attributed by law enforcement to the growth of gangs and the crack cocaine trade, led to the 1988 passage of the STEP Act.

Under the act, prosecutors now could seek longer sentences for people facing criminal charges who also fit 3 of 10 criteria that might indicate gang involvement: associating with known gang members, being seen in a known gang neighborhood – such as sections of Compton in the Los Angeles area, the Fillmore District in San Francisco and the Skyline area of Southeast San Diego – or wearing attire that might be gang related, such as a red San Francisco 49ers hat (Norteños/Bloods) or the blue caps of the Los Angeles Dodgers (Sureños/Crips).

As of mid-2015, 8,050 inmates – roughly 7 percent of the state’s prison population – are serving extra time because of these gang enhancements, according to The New York Times Magazine.

As the STEP Act was moving through the Legislature, prosecutors developed another tool: gang injunctions, which in effect are nuisance abatement suits that restrict an individual’s right to associate with other alleged gang members or move around freely in a geographic area linked to a gang. The injunctions provide law enforcement with wide latitude to stop, question and search people. They typically cover at least a dozen people and 1 to 3 square miles.

The injunctions have come under fire as a form of racial profiling in gentrifying areas such as L.A.’s Venice, and academic research does not show a clear impact on violent crime and gang involvement. Yet by 2013, according to court documents from a class-action lawsuit challenging the injunctions, more than 5,700 people in the Los Angeles area had been served with gang injunctions. A $30 million settlement was reached in the suit last week.

Against this backdrop, a private firm called Orion Scientific Systems Inc. began to create the CalGang database. The system’s first prototype, according to a report prepared by the California Department of Justice in 1999, was piloted by the San Diego Police Department in 1996 and rolled out statewide two years later at a cost of $520,000.

CalGang brought a sea change to state law enforcement by allowing officers in the field instant access to digitized intelligence about an individual’s gang ties. Before its launch, officers had to turn to an expensive and cumbersome electronic filing system called GREAT or dig through filing cabinets to pull up that person’s paper file.
Wes McBride was a sergeant in the Los Angeles County sheriff’s gang unit for 28 years until he retired in 2002. He now serves as the executive director of the California Gang Investigators Association.

Wes McBride was a sergeant in the Los Angeles County sheriff’s gang unit for 28 years until he retired in 2002. He now serves as the executive director of the California Gang Investigators Association. Credit: Stuart Palley for Reveal

GREAT – or the Gang Reporting, Evaluation, and Tracking system – was created by Wes McBride, a sergeant in the Los Angeles County sheriff’s gang unit for 28 years until he retired in 2002. McBride, who now serves as the executive director of the California Gang Investigators Association, went on to assist with the design of CalGang.

McBride believes in the value of rapid access to gang information that CalGang provides to field officers.

“In most cases, the gang members that you’re going to deal with are going to be your shooters and your victims,” he said. “These systems are built for when they’re not.”
Database veiled in secrecy

CalGang has been so successful that it has served as a template for similar databases marketed as the GangNet system by SRA International Inc. – which acquired Orion in 2004 – to law enforcement agencies in 13 other states, Canada and three federal agencies, including the FBI, U.S. Immigration and Customs Enforcement and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In California, the database holds information on more than 150,000 men and women, according to data obtained from the CalGang Executive Board through the state Public Records Act. In a state where 45 percent of the population is Latino or black, 85 percent of those entered into the database as alleged gang members or associates are Latino or black. They are as young as 9 and as old as 65.

calgang

As is the case with the government’s terrorist watch list, most people do not have the right to know whether they are included in CalGang. The database’s operating guidelines require that secrecy and instruct law enforcement officials to say that they are advised against including references to the database in public reports, court documents or public testimony.

In 2013, the California Legislature took a swipe at CalGang’s lack of transparency, passing a law requiring police departments to notify the parents of juveniles included in the database and to allow them to challenge their children’s gang classification.

But an attempt to extend these protections to adults failed last year.

Adults are removed from the database only if their file is not updated for five years. The trouble is, a police officer can update a file through contact as minimal as stopping someone while he or she is driving or walking in a known gang area – like the dozens of times Aaron Harvey was stopped in his own neighborhood while visiting his family in an area that police say is Lincoln Park Bloods territory.

“It’s like a virus that you have, that you don’t know you have. … (Someone) infected me with this disease; now I have it, and there’s no telling how many other people I have infected.”Aaron Harvey
on gang classification

In fact, California prison inmates have more rights than people on the outside because they are notified by authorities if they are classified as a gang member and have the ability to challenge that decision through the corrections department.

“Very little is known about the CalGang database,” said Ana Muñiz, a UCLA sociologist who has researched the database and gang injunctions. “There’s no rigorous oversight. And yet you have files built on tens of thousands of people that could affect their lives in very real ways.”

McBride, the retired sheriff’s sergeant who helped create CalGang, maintains that the database does not harm people unless they break the law.

“Say you’re in there. It doesn’t harm you,” he said. “I can’t use it for jobs. All I can use it for is criminal investigations.”

But such reassurances do not sit well with Assemblywoman Shirley Weber of San Diego, who said her adult son was stopped by police in the summer of 2002 while out in the trendy Gaslamp Quarter and told that he would be entered into CalGang.

“Putting people on lists intimidates individuals and communities, and it also gives police officers an opportunity to go and arrest individuals who may not be gang members,” she said. “It casts a very wide net in communities. That has a chilling effect on young men who may have never even thought of being a member of a gang.”

In August, Weber urged the state auditor to launch a thorough examination of the database and its use by state and local law enforcement agencies.

Investigators have been asked to determine whether alleged gang members’ information has been kept in CalGang improperly, whether departments are complying with California’s gang criteria when they add data, whether minors are being removed in accordance with the 2013 law, how local law enforcement use the database, the system’s cost and whether it has been successful.
Efforts to open CalGang to public

California police and prosecutors highly value the information CalGang provides, and they are concerned about efforts to provide access to the public.

The importance of CalGang to law enforcement became apparent last spring, when the California District Attorneys Association led the charge to derail AB 829, the bill sponsored by Assemblyman Adrin Nazarian, D-Van Nuys, that would have required notifying adults that they had been included in CalGang and established a process to petition for removal.

In emails to law enforcement agencies, association Assistant CEO Martin Vranicar wrote that AB 829 “would completely destroy the use of the CalGang database as a viable law enforcement tool.” He rallied support from other law enforcement advocacy groups to kill the bill before it reached the Assembly floor in April.

“We have to be opposed” to the measure, Aaron Maguire, a lobbyist for the California State Sheriffs’ Association, testified at the time. “We’re talking about undermining criminal investigations and providing very costly hearings.”

Glimpses of how CalGang is used emerge from conversations with current and former law enforcement officials, court filings and internal law enforcement documents.

When someone is stopped by police, his or her identification is checked against California’s law enforcement databases for prior arrests and contacts. Through CalGang, officers can check whether the person previously has been documented as a gang member or associate.

A 1999 California Department of Justice report includes accounts of how law enforcement used CalGang to identify and locate criminal suspects.

In the San Diego area, police identified a gang-related suspect by running a search for a “Maria” chest tattoo. Within minutes, the database pulled up 13 possible matches.

In the Central Valley city of Fresno, sheriff’s deputies identified a suspect in the gang rape of three underage girls by searching the database for a name – “Bolo” – that one of the victims remembered hearing.

Frank Jackson, the San Diego County assistant district attorney, said investigators there routinely use CalGang.

Others were more circumspect.

Many law enforcement agencies declined requests for information about how they use CalGang, how the database facilitates their daily functions and with whom they share records. CalGang’s Executive Board also declined to explain how the database is used.

Brian Schirn, an assistant head deputy with the hardcore gang unit at the Los Angeles County district attorney’s office, is a strong defender of the STEP Act and the gang enhancements it offers prosecutors. When he was a prosecutor in the 1990s, he said, he heard residents at community meetings plead for relief from gang warfare.

“We would listen to these people who were afraid to leave their homes,” he said.

But Schirn would not open up about CalGang, beyond denying that his office relies on it for evidence. In fact, he said, the office doesn’t use the system at all. Shiara Dávila-Morales, a spokeswoman for the district attorney’s office, confirmed that investigators attached to the office have access to CalGang.

Field officers also vary in how diligently they upload information to CalGang – a persistent dynamic since the database’s inception.
Jack Schaeffer, a San Diego police detective and vice president of the local police union, says he routinely reviews CalGang for information on suspects. He says the availability of information varies by department.

Jack Schaeffer, a San Diego police detective and vice president of the local police union, says he routinely reviews CalGang for information on suspects. He says the availability of information varies by department.Credit: Sandy Huffaker for Reveal

Jack Schaeffer, a San Diego police detective and vice president of the local police union, investigates several San Diego Crips sets, or groups claiming a broader gang affiliation. He said he routinely reviews CalGang for information on suspects, though he noted that the availability of information varies from department to department.

“Some agencies will plug things into the system,” he said, “while others won’t and have hard-copy files instead of digital files.”
Inaccurate info used as evidence

One of the CalGang critiques leveled by UCLA sociologist Ana Muñiz and ACLU of Southern California lawyer Peter Bibring is that the secrecy of information in the database and lack of external review of gang evidence can lead to inaccuracies in someone’s file.

The forthcoming state audit is expected to shed light on the training procedures for personnel who input individuals into the database, as well as documentation procedures and information sharing among law enforcement.

Incorrect information uploaded to CalGang already has found its way into court. For example, documentation of alleged gang member Daniel Antuñez, 26 – provided to the Orange County district attorney by police in Santa Ana – was used to include him in a civil injunction against the Townsend Street gang.

Antuñez has three brothers and grew up in the heart of the territory covered by the injunction. He also has dozens of documented contacts with police. But he claims that he is not a gang member and challenged his inclusion in the database with the assistance of the ACLU. On Feb. 5, the Orange County DA decided to drop its efforts to include Antuñez in the Townsend Street injunction, according to Caitlin Sanderson, an ACLU of Southern California staff attorney who represented Antuñez.

Antuñez’s Santa Ana file contains a field interview card on which the nickname and tattoos don’t match Antuñez – they match his twin brother, Sergio. Another field interview card included in the file clearly pertains to his youngest brother, David. Check boxes on the erroneous field interview cards note that they were uploaded to CalGang.

Jeff Launi, a Santa Ana gang detective who testified for the Orange County prosecutor as its expert witness on the Townsend Street gang, admitted in a September deposition that he had never met Daniel Antuñez and relied on the flawed documents to make his determination.

“Inaccuracies on the field interview cards and STEP notices we found in Daniel’s file likely means there are inaccuracies in his entry in CalGang,” Sanderson said.

She described law enforcement’s decision-making process about what constitutes gang evidence as haphazard and in need of outside scrutiny.

“It’s crucial that there’s some form of oversight and transparency in the collection of this information,” she said.

In the Los Angeles class action against gang injunctions, a declaration by Angel Gomez, a gang officer in the Los Angeles Police Department’s Pacific Division – which includes the Mar Vista, Venice and Palms neighborhoods – revealed rampant inaccuracies in that division’s information on gang members.

“I would estimate that approximately 50% of the address information in our records for Pacific Division gang members is inaccurate at any given time,” Gomez’s declaration reads.

Bibring, the ACLU attorney, said the lack of rigor surrounding the documentation of gang members and associates, the building blocks of CalGang, opens the door for law enforcement officials to exaggerate the gang threat.

“There is a fiction of gangs being more organized than they actually are, which CalGang helps perpetuate,” he said. “It makes documented people easier to prosecute, (and) it makes the task of dealing with gang members easier in that you just put them away.”
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This story was co-produced through an editorial partnership with The Investigative Fund, a project of The Nation Institute. It was edited by Fernando Diaz, Amy Pyle and Esther Kaplan and copy edited by Sheela Kamath and Nikki Frick.

Ali Winston can be reached at awinston@cironline.org. Follow him on Twitter: @awinston.

Top photo: San Diego native Aaron Harvey insists that he never has been affiliated with a gang. But in 2014, he was charged with nine counts of criminal street gang conspiracy for shootings that occurred when he wasn’t living in California. CREDIT: Sandy Huffaker for Reveal